4 yearly review of modern awards—Family & Domestic Violence Leave and Family Friendly Work Arrangements clauses
[2017] FWCFB 3865
•24 JULY 2017
| [2017] FWCFB 3865 |
| FAIR WORK COMMISSION |
| STATEMENT |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards—Family & Domestic Violence Leave and Family Friendly Work Arrangements clauses
(AM2015/1 and AM2015/2)
| JUSTICE ROSS, PRESIDENT DEPUTY PRESIDENT GOOLEY | Sydney, 24 JULY 2017 |
4 yearly review - Family & Domestic Violence Leave Clause and Family Friendly Work Arrangements clauses.
AM2015/1 - 4 yearly review of modern awards – Family & Domestic Violence Leave Clause
Matter AM2015/1 concerns a claim by the Australian Council of Trade Unions (ACTU) for a paid family and domestic violence leave clause to be inserted into every modern award.
On 30 June 2017 the President issued a Decision expressing the view that the Fair Work Act 2009 (Cth) (FW Act) permitted Deputy President Gooley and Commissioner Spencer to hand down their decision(s) in this matter and that their decision(s), taken together with the decision in the matter of former Vice President Watson, would comprise the Full Bench decision in matter AM2015/1[1].
On 3 July 2017 Deputy President Gooley and Commissioner Spencer handed down their Decision[2]. Taking their Decision together with the Decision of former Vice President Watson[3], the unanimous decision of the Full Bench was to reject the ACTU’s claim. However, Deputy President Gooley and Commissioner Spencer expressed a preliminary view that:
‘that all employees should have access to unpaid family and domestic violence leave and in addition we have formed the preliminary view that employees should be able to access personal/carer’s leave for the purpose of taking family and domestic violence leave.’[4]
As Deputy President Gooley and Commissioner Spencer observe, at [120] of their decision, interested parties have not yet been given an opportunity to make submissions or call evidence in respect of their preliminary views and further proceedings will be necessary to provide that opportunity.
To allow interested parties to make submissions as to the appropriate directions for the further proceedings in respect of this matter, a Mention was held on Friday 21 July 2017. The transcript of that proceeding is available on the Commission’s website at Transcript – 21 July 2017.
At the Mention the President indicated that it would be appropriate for the parties to file written submissions before the Full Bench gave consideration to releasing draft model terms for comment. It was generally agreed that all parties be given four weeks to file written submissions in relation to the preliminary views expressed by the majority in their decision of 3 July 2017. All parties would then file submissions in reply, four weeks later. The matter would then be listed for conference, followed by an oral hearing.
In determining the issues set out at [4] above the Full Bench will have regard to all of the submissions and evidence in the proceedings to date. A list of that material is set out at Attachment A. Any amendments or additions to that list of material are to be provided by 4.00 pm on Friday 28 July 2017 to [email protected].
Draft directions in respect of AM2015/1 are attached at Attachment B. Interested parties are invited to comment on those draft directions by 4.00 pm on Friday 28 July 2017 to [email protected].
At the Mention there was also general agreement with the proposition that it would be of assistance to the parties and the Commission if some guidance was provided about the issues to be addressed in the submissions in respect of the majority’s preliminary view.
For example, in respect of unpaid domestic violence leave some of the issues to be addressed may be:
Issue 1:Should there be an entitlement to access unpaid domestic violence leave?
Issue 2:If there is to be an entitlement to unpaid domestic violence leave then:
(i)What is the extent of the entitlement to unpaid domestic violence leave (i.e. how many days unpaid leave)?
(ii)In what circumstances does an entitlement to unpaid domestic violence arise (i.e. the definitional issues)?
(iii) Continuity of service issues.
(iv) Application to part-time employees.
Similar issues may arise in respect of the extension of the NES entitlement to personal/carers leave to domestic violence leave, by award variation.
Before finalising the list of issues parties were invited to provide any suggestions in this regard. Suggestions in respect of the issues to be addressed in relation to the preliminary views are to be filed by 4.00 pm on Friday 28 July 2017 to [email protected].
Final directions in respect of this matter will be issued on Tuesday 1 August 2017.
AM2015/2 - 4 yearly review of modern awards – Family Friendly Work Arrangements.
Matter AM2015/2 concerns a claim by the ACTU to vary all modern awards to provide employees with an entitlement to temporary reduced hours to accommodate their parenting and/or caring responsibilities.
The Full Bench in matter AM2015/2 has been reconstituted to comprise the President as presiding member, Deputy President Gooley and Commissioner Spencer.
Amended Directions in this matter were issued by former Vice President Watson on 22 December 2016 (the Amended Directions) and at present, the weeks of 10 and 17 October 2017 are reserved for the hearing of the matter.
Ai Group has sought an extension of time to file submissions and evidence in reply until 6 October 2017. Ai Group also proposed that paragraph 4 of the Amended Directions be amended so as to require submissions and evidence in reply by 27 October 2017 and that the hearing dates in October be vacated.
The Full Bench will determine Ai Group’s application once the directions in respect of the Family & Domestic Violence Leave matter (AM2015/1) have been finalised.
PRESIDENT
Attachment A – List of material filed to date
Part 1–Submissions and documents in relation to the constitution of the Full Bench
1. Decisions, Statements and Transcripts
| Item no. | Document title | Document date |
| 1 | Full Bench decision - [2017] FWCFB 3494 | 03/07/2017 |
| 2 | Full Bench decision - [2017] FWCFB 1133 | 27/02/2017 |
| 3 | Transcript - 28 June 2017 | 28/06/2017 |
| 4 | Decision - [2017] FWC 3480 | 30/06/2017 |
| 5 | Statement - [2017] FWC 3389 | 23/06/2017 |
| 6 | Statement - [2017] FWC 3316 | 20/06/2017 |
| 7 | Statement - [2017] FWC 2928 | 29/05/2017 |
| 8 | Decision - [2017] FWC 2752 | 18/05/2017 |
| 9 | Statement - [2017] FWC 2347 | 28/04/2017 |
| 10 | Statement - [2017] FWC 2189 | 18/04/2017 |
| 11 | Transcript - 4 April 2017 | 04/04/2017 |
| 12 | Statement - [2017] FWC 1733 | 27/03/2017 |
2. Submissions and correspondence
| Item no. | Document title | Organisation | Document date |
| 1 | Further submission - constitution of the Full Bench | AMIC | 27/06/2017 |
| 2 | Submission - constitution of the Full Bench - referral to the Federal Court | ACCI | 11/05/2017 |
| 3 | Submission - constitution of the Full Bench - referral to the Federal Court | ACTU | 10/05/2017 |
| 4 | Submission - constitution of the Full Bench - referral to the Federal Court | Ai Group | 10/05/2017 |
| 5 | Submission - constitution of the Full Bench | AMIC | 09/05/2017 |
| 6 | Submission - constitution of the Full Bench - future conduct of AM2015/2 | ACTU | 05/05/2017 |
| 7 | Submission - constitution of the Full Bench - future conduct of various matters | ACCI and others | 05/05/2017 |
| 8 | Submission - constitution of the Full Bench | Ai Group | 13/04/2017 |
| 9 | Submission - constitution of the Full Bench | ACTU | 12/04/2017 |
| 10 | Correspondence and correspondence in reply from FWC - extension of time | Ai Group | 12/04/2017 |
| 11 | Submission - constitution of the Full Bench | AMIC | 12/04/2017 |
| 12 | Correspondence - Morton v The Transport Appeal Board | FWC | 06/04/2017 |
| 13 | Submission - response to questions | ACTU | 04/04/2017 |
| 14 | Submission - response to questions | Ai Group | 03/04/2017 |
| 15 | Submission - response to questions | ACCI | 03/04/2017 |
Part 2–Substantive matter
1. Decisions, Statements and Transcripts
| Item no. | Document title | Document date |
| 1 | Full Bench decision - [2017] FWCFB 3494 | 03/07/2017 |
| 2 | Full Bench decision - [2017] FWCFB 1133 | 27/02/2017 |
| 3 | Transcript - 2 December 2016 | 02/12/2016 |
| 4 | Transcript - 1 December 2016 | 01/12/2016 |
| 5 | Transcript - 18 November 2016 | 18/11/2016 |
| 6 | Transcript - 17 November 2016 | 17/11/2016 |
| 7 | Transcript - 16 November 2016 | 16/11/2016 |
| 8 | Transcript - 15 November 2016 | 15/11/2016 |
| 9 | Transcript - 14 November 2016 | 14/11/2016 |
| 10 | Transcript - 27 October 2016 | 27/10/2016 |
| 11 | Order - confidential hearing orders | 31/05/2016 |
| 12 | Order - confidential evidence orders | 31/05/2016 |
| 13 | Full Bench decision - [2015] FWCFB 5585* | 23/10/2015 |
| 14 | Transcript - 13 August 2015 * | 13/08/2015 |
| 15 | Transcript - 20 February 2015* | 20/02/2015 |
| 16 | Statement - [2014] FWC 8583* | 1/12/2014 |
2. Submissions and correspondence
| Item no. | Document title | Organisation | Document date |
| 1 | Submission | National Road Transport Association | 05/04/2017 |
| 2 | Submission - further information | Victorian Government Solicitor's Office | 06/12/2016 |
| 3 | Correspondence | ARA and another | 09/12/2016 |
| 4 | Submission | Brisbane Catholic Education | 01/12/2016 |
| 5 | Correspondence | Women's Health Tasmania | 01/12/2016 |
| 6 | Correspondence | Ai Group | 30/11/2016 |
| 7 | Submission | ACTU | 28/11/2016 |
| 8 | Correspondence | Victorian Government Solicitor's Office | 28/11/2016 |
| 9 | Correspondence | NFF | 28/11/2016 |
| 10 | Submission - tender list | ACTU | 25/11/2016 |
| 11 | Submission | ACCI | 28/11/2016 |
| 12 | Submission | Ai Group | 28/11/2016 |
| 13 | Correspondence | AMIC | 28/11/2016 |
| 14 | Submission | ACT Government | 23/11/2016 |
| 15 | List of exhibits - 14-18 November 2016 | ||
| 16 | Witness schedule - 17 November 2016 | ACTU | 17/11/2016 |
| 17 | Submission | Council of Greater Dandenong | 15/11/2016 |
| 18 | Submission | Queensland Government | 14/11/2016 |
| 19 | Witness statements and expert evidence - updated | ACTU | 14/11/2016 |
| 20 | Submission - objection to evidence - ACTU | Ai Group | 14/11/2016 |
| 21 | Witness schedule- revised | ACTU | 14/11/2016 |
| 22 | Witness statement - J. Stott - revised - redacted | ACTU | 11/11/2016 |
| 23 | Submission | NRA | 02/11/2016 |
| 24 | Correspondence - list of authorities | Ai Group | 20/10/2016 |
| 25 | Submission in reply - witness statement and expert report | ACTU | 17/10/2016 |
| 26 | Submission - source documents | ACCI | 12/10/2016 |
| 27 | Submission - amended witness statement | ACTU | 12/10/2016 |
| 28 | Submission in reply | AHRC | 14/10/2016 |
| 29 | Correspondence | NT Working Women's Centre | 10/10/2016 |
| 30 | Submission in reply | ACTU | 05/10/2016 |
| 31 | Submission | National Foundation for Australian Women | 05/10/2016 |
| 32 | Correspondence - directions hearing | ACTU | |
| 33 | Reply submission and witness statements | Ai Group | 19/09/2016 |
| 34 | Submission | PGA | 19/09/2016 |
| 35 | Submission | AFEI | 19/09/2016 |
| 36 | Submission | AMIC | 16/09/2016 |
| 37 | Submission | Surf Coast Shire Council | 16/09/2016 |
| 38 | Submission | ACCI | 16/09/2016 |
| 39 | Submission | NFF | 15/09/2016 |
| 40 | Submission | Aged Care Services Australia Group | 15/09/2016 |
| 41 | Submission and witness statement | Pricewaterhouse Coopers | 20/06/2016 |
| 42 | Submission and witness statements | ACTU | 01/06/2016 |
| 43 | Correspondence – outlining evidence to be filed | ACTU | 31/05/2016 |
| 44 | Submission - confidentiality matters | ACTU | 26/05/2016 |
| 45 | Submission | Victorian Government | 16/05/2016 |
| 46 | Submissions | AHRC | 12/05/2016 |
| 47 | Outline of Expert Evidence | ACTU | 05/05/2016 |
| 48 | Further submission * | Ai Group | 21/08/2015 |
| 49 | Further submission * | ACCI and others | 21/08/2015 |
| 50 | Further submission * | ACTU | 18/08/2015 |
| 51 | Correspondence and list of authorities* | ACTU | 13/08/2015 |
| 52 | Correspondence and list of authorities* | Ai Group | 12/08/2015 |
| 53 | Correspondence and list of authorities* | ABI & NSWBC | 12/08/2015 |
| 54 | Further submission and list of authorities* | Ai Group | 11/08/2015 |
| 55 | Correspondence and submissions | ACTU | 15/06/2015 |
| 56 | Submission on preliminary issues* | NFF | 20/04/2015 |
| 57 | Submission - Jurisdictional objection* | Ai Group | 20/04/2015 |
| 58 | Submission * | HIA | 20/04/2015 |
| 59 | Outline of submissions * | ACCI | 20/04/2015 |
| 60 | Draft determinations | ACTU | 02/03/2015 |
| 61 | Submission - draft clauses * | ACTU | 13/02/2015 |
*These documents relate to both AM2015/1 and AM2015/2
Attachment B
| DRAFT DIRECTIONS |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – Family and domestic violence leave
(AM2015/1)
| Justice Ross, President DEPUTY PRESIDENT GOOLEY | MELBOURNE, 1 AUGUST 2017 |
Preamble
These directions concern the further proceedings in respect of the preliminary views expressed by the majority (Deputy President Gooley and Commissioner Spencer) ([2017] FWCFB 3494 at [6]) that:
(i) All employees should have access to unpaid family and domestic violence leave.
(ii) Employees should be able to access their NES entitlement to personal/carer’s leave for the purpose of taking family and domestic violence leave.
Directions
1. All interested parties shall file comprehensive written submissions and any further witness statements or documentary evidence on which the party seeks to rely by 4.00 pm on Wednesday 30 August 2017.
2. On or before 4.00 pm on Wednesday 27 September 2017, interested parties are to file comprehensive written submissions in reply and any witness statements or documentary evidence in reply.
3. All submissions filed should address the issues set out in Attachment A [to be completed]. Submissions are not limited to the issues identified in Attachment A.
4. The matter will be listed for Conference before me on 11 and 13 October 2017 in Melbourne.
5. The matter will be listed for oral Hearing on 19 and 20 October 2017 in Sydney.
6. All material should be sent in a Word document to [email protected].
7. Copies of any submissions filed in response to these directions will be published on the AM2015/1—Family and domestic violence clause page of the Commission’s website.
8. Liberty to apply.
PRESIDENT
Attachment A to Directions – Issues to be addressed
To be inserted
[1] 4 yearly review of modern awards – Family & Domestic Violence Leave Clause[2017] FWC 3480 at [32].
[2] 4 yearly review of modern awards – Family & Domestic Violence Leave Clause[2017] FWCFB 3494.
[3] 4 yearly review of modern awards – Family & Domestic Violence Leave Clause [2017] FWCFB 1133 at [146
[4] 4 yearly review of modern awards – Family & Domestic Violence Leave Clause [2017] FWCFB 3494 at [6].
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